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Electronic Discovery

Group edges closer to harmonization of eDiscovery rules

Efforts to establish harmonized civil procedure rules that govern a uniform approach to eDiscovery across Canada are underway with the Uniform Law Conference of Canada (ULCC), Toronto eDiscovery lawyer Crystal O’Donnell tells The Lawyer’s Daily.

The ULCC working group, which began in 2016, is drafting the proposed civil procedure rule, with the hope the rules will be implemented across all jurisdictions, says O’Donnell, founder and CEO of Heuristica Discovery Counsel.

“We needed a rule in Canada, and we needed harmonization because some provinces don’t have any eDiscovery rules and the ones that do are different,” she says. “For companies that are dealing with litigation across the country — think of all our national corporations, the federal government — it is becoming increasingly more difficult to take a standard approach in civil litigation. Then you add arbitrations and tribunals on top of it and everybody is doing things differently.”

O’Donnell is co-chair of the ULCC’s electronic document rules working group, one of the contributing authors of the 2015 Sedona Canada Principles and a member of the Ontario eDiscovery implementation committee, the article says.

At the ULCC’s annual conference in 2017, the first draft of the rules was approved and then distributed to interested stakeholders, including law societies, judges, and lawyers’ organizations, for comments, she says. At this summer’s ULCC’s meeting, the rule will be presented and O’Donnell says she expects it will be approved.

Next year, “we will be meeting with the rules committees across the country to encourage adoption, because the ULCC has a mandate to propose harmonized legislation, but they obviously don’t have the ability to require provinces to pass legislation,” she says.

The proposed rule focuses on “on planning, co-operation and transparency and giving the parties [the ability] to scope the relevance in a manner that is proportionate with the litigation,” she says.

Peter J.M. Lown, chair of the advisory committee on program development and management, chair of the international committee and a member of the executive of ULCC, says the rule aims to achieve a fair and workable balance and answer questions lawyers have, says the online legal news site.

“How do we sort [documents] ahead of time so that we are giving you the appropriate relevant documents without snowing you under?” says Lown who is also a member of the electronic documents working group and a past president of the organization. “How do we avoid giving you metadata that will be prejudicial to other matters? How do we decide how to deal with questions of privilege and so on?”

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